F 3.01

F 3.01 n1 Aider and Abetter: Constructive Presence.

For the purposes of aiding and abetting, “presence” is a question of fact. (People v. Silva (56) 143 CA2d 162, 169 [300 P2d 25]). However, the precise definition of “presence” is not included in CJ 3.01. It has been suggested that the element of “presence” may be satisfied by “constructive presence” when the accused is cooperating with the perpetrator and is situated so as to be able to aid the perpetrator in the commission of the crime. (People v. Woods (92) 8 CA4th 1570, 1582 fn 3 [11 CR2d 231]; see also People v. Pedesclaux (63) 216 CA2d 1, 5 [30 CR 574] [suggesting that instruction on constructive presence is not required sua sponte].)

F 3.01 n2 Gang Membership Insufficient To Prove Aider and Abetter Liability.

Membership in a gang cannot serve as proof of intent, or of the facilitation, advice, aid, promotion, encouragement, or instigation needed to establish aiding and abetting. To hold otherwise would invite absurd results. “Any gang member could be held liable for any other gang member’s act at any time so long as the act was predicated on the ‘common purpose of fighting the enemy.’” [Internal citations and punctuation omitted] (Mitchell v. Prunty (9th Cir. 1997) 107 F3d 1337, 1342.)

F 3.01 n3 Applicability Of Aiding And Abetting When Element Is Committed By A Co-Perpetrator.

People v. Cook (98) 61 CA4th 1364 [72 CR2d 183] held that the fact that a key element of the crime is performed by another person doesn’t make an accomplice an aider and abettor.

However, this rule has been held to be unconstitutional because it allows conviction without a finding of all essential elements of criminal liability: "Petitioner correctly argues that the rule expressed in Cook is unconstitutional. Due process requires that all elements of the offense be proven against the defendant. However, the Cook rule allows the prosecution to prove an offense by establishing only one element as to a particular defendant, effectively removing the necessity of proving all required elements and thereby lessening the burden of proof. Pursuant to the Cook rule, if a crime is completed, then the prosecution need only prove that a defendant committed one element in order for the defendant to be found guilty of the entire crime, so long as another actor committed the remaining elements. Under Cook, in such a case, aiding instructions are unnecessary. (Cook v. Lamarque (D. Cal., 2002) 239 FSupp2d 985, 996.)

"The constitutional deficiencies of this rule can be demonstrated by a simple hypothetical example. Consider two individuals who decide to frighten another individual. As part of the plan, one actor is to utilize a toy gun in a confrontation with the victim. Now, let us suppose the other actor decides he in fact wants to kill the victim, and he replaces the toy gun, unbeknownst to the first actor, with a real gun. When the first actor, thinking he is using a toy gun, pulls the trigger and kills the victim, is he guilty of murder? Under the Cook rule, the answer is in the affirmative. Pursuant to Cal. Penal Code § 187, murder is defined as `the unlawful killing of a human being, or a fetus, with malice aforethought.’ Applying the Cook rule, the first actor is guilty of murder even though he did not bear malice aforethought, because the crime was completed, he committed an unlawful killing, and the element of malice was completed by the other actor. This result is clearly unconstitutional, but it is entirely possible under the new rule announced in Cook." (Ibid.; see also FORECITE F 3.01n.) [Briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-740.]

F 3.01 n4 CJ 3.01 Must Be Given With CJ 3.00.

CJ 3.01 must be given whenever CJ 3.00 is given. (People v. Campbell (94) 25 CA4th 402, 412 [30 CR2d 525]; People v. Reyes (92) 2 CA4th 1598, 1601 [4 CR2d 48] [error in failing to give CJ 3.01 equivalent to omission of an element from the definition of the crime]; People v. Patterson (89) 209 CA3d 610, 617 [257 CR 407]; People v. Ponce (50) 96 CA2d 327, 331 [215 P2d 75].)

F 3.01 n5 Jurisdiction Of California For In-State Aiding And Abetting Of Out-Of-State Offense.

People v. Morante (99) 20 C4th 403 [84 CR2d 665] held that California courts have jurisdiction to prosecute defendants both for in-state conspiracies to commit offenses out of state, and for in-state aiding and abetting of the commission of offenses out of state.

F 3.01a

Defendant Must Advise And Encourage To Be An Aider And Abettor

(PC 31)

*Modify ¶ 3 of CJ 3.01 to provide as follows [added language is capitalized]:

(2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice aids, promotes, ADVISES AND encourages, or instigates the commission of the crime.

[See FORECITE F 3.01g]

Points and Authorities

The current version of CJ 3.01 was taken from People v. Beeman (84) 35 C3d 547, 562 [199 CR 60]. It provides for aiding and abetting liability if the defendant “with the intent or purpose of committing, encouraging or facilitating the commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime.” However, there is a problem with this instruction which was not before the court in Beeman.

PC 31, the statutory basis for aiding and abetting liability requires that the defendant “advise and encourage” the perpetrator. (See also People v. Hoover (74) 12 C3d 875, 879 [117 CR 672]; People v. Balderas (85) 41 C3d 144, 194, fn 22 [222 CR 184]; People v. Butts (65) 236 CA2d 817, 836 [46 CR 362].) Hence, CJ 3.01 fails to employ the express statutory language of PC 31. Nor should Beeman be relied upon to conclude that advice or encouragement is sufficient. Cases are not authority for propositions not considered therein. (People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390].)

Nor are the words “advise” and “encourage” synonymous. The word “advise” is defined as “to give counsel to; to offer and opinion or suggestion as worth following.” (Webster’s Encyclopedia Unabridged Dictionary of the English Language, 1989, p. 21.) The word “encourage” is defined as “to inspire with courage, spirit or confidence … to stimulate by assistance, approval.” (Webster’s, Id. at 470.) One can “encourage” an offense by the mere statement “that sounds like a good idea.” However, telling another individual something “sounds like a good idea” is not the equivalent of advising and counseling the individual concerning the idea. For one to advise or counsel another as to a particular idea requires a far greater degree of commitment to the idea than is the case when one merely encourages the idea.

This analysis is supported by People v. Elliott (93) 14 CA4th 1633, 1641-42 [18 CR2d 426], which concluded, in a discussion of accessory liability under PC 32, that the words “aid” and “abet” “have a distinct and separate meaning.” (Elliott 14 CA4th at 1641, fn 8.) “The word ‘aids’ means ‘to assist; to supplement the efforts of another,’ while the word ‘abet’ means merely to incite or encourage. [Citations].” [emphasis by Elliott court]. Hence, because aider and abetter liability requires that the defendant aid and (not “or”) abet (see People v. Beeman (84) 35 C3d 547, 556 [199 CR 60]), CJ 3.01 erroneously allows the jury to find aider and abetter liability if the defendant merely encouraged the perpetrator. As Elliott makes clear, encouragement constitutes abetting, but not aiding.

Failure to require a jury determination as to all elements of the charge implicates the federal constitutional rights to trial by jury and due process. (6th and 14th Amendments.) (See generally, FORECITE PG VII(C).)

NOTES

While the legislature used the conjunctive phrase “advised and encouraged” to describe the elements of liability for ages 14 years and older, it employed the disjunctive phrase “advising, or encouraging” to describe the elements of liability for minors under 14 years old. Inclusion of the conjunctive phrase in one portion of the statute and omission of it in another evinces differing legislative intents. (Craven v. Crout (85) 163 CA3d 779, 783 [209 CR 649].)

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-582.]

F 3.01a.1

Aiding And Abetting Defined And Distinguished

(PC 31)

This instruction has been renumbered to F 3.01g.

F 3.01b

For Aider/Abettor To Be Guilty Of Murder Perpetrator Must Harbor Express Malice

(PC 31)

ALERT: People v. McCoy (2001) 25 C4th 1111, 1122 [108 CR2d 188] held that in situations not involving the natural and probable consequences doctrine the aider and abettor may be convicted of a greater crime than the perpetrator. (See FORECITE F 3.01n.)

*Add to CJ 3.01 when appropriate:

To find defendant guilty of [attempted murder] [murder] as an aider or abettor it must be proven beyond a reasonable doubt that [the perpetrator] [insert perpetrator’s name] committed [the killing] [the ineffectual act] with malice aforethought.

Points and Authorities

When a defendant is charged with attempted murder or completed malice murder as an aider and abettor the perpetrator (actual killer) must have the requisite express malice (intent to kill) and the jury must be so instructed. (People v. Patterson (89) 209 CA3d 610, 614-15 [257 CR 407]; see also People v. Woods (92) 8 CA4th 1570, 1586 [11 CR2d 231]; People v. Solis (93) 20 CA4th 264, 270-271 [25 CR2d 184].) Moreover, the aider and abettor must act (1) with knowledge of the perpetrator’s “criminal purpose” (i.e., intent to kill unlawfully) and (2) with an intent or purpose to aid and abet the commission of the offense (i.e., the intended murder). (Patterson,supra, at 616-17.)

See FORECITE F 3.01r for further discussion and briefing on this issue.

NOTES

Application When Murder Is Target Offense: This instruction is applicable when murder or attempted murder was the target offense. (See People v. Jones (89) 207 CA3d 1090, 1095 [255 CR 464].) If there is another target offense then the aider and abettor need only have intended to facilitate the commission of that offense. (Ibid; see also, People v. Croy (85) 41 C3d 1, 12 fn 5 [221 CR 592]; CJ 3.02.) However, he must still have acted with knowledge of the perpetrator’s intent to murder or the murder must be a natural and probable consequence of the target crime. (Ibid; see also FORECITE F 3.02, Notes.)

Implied Malice: The logic of Patterson would seem to be equally applicable to implied malice murder.

Application To Mental Elements Of Other Crimes: Because the perpetrator must actually form the required mental elements (People v. Beeman (84) 35 C3d 547, 560 [199 CR 60], this instruction may be adapted for use in any case where the mental state of the perpetrator may be in issue. (See e.g., FORECITE F 3.01o.)

CAVEAT: This instruction pinpoints one element of the charge. It should be related to the other requisite elements to avoid any inference that the pinpointed element is the only one that need be proven.

F 3.01c

Post-Crime Assistance Is Not Aiding and Abetting

(PC 31)

*Add to CJ 3.01 when appropriate:

Any assistance offered by the defendant to the perpetrator of the crime after the crime has been committed is insufficient to establish that [he] [she] aided and abetted the perpetrator in the commission of the offense.

Points and Authorities

It is well settled that acts committed after the crime has been completed are insufficient to establish aiding and abetting liability. (People v. Rutkowsky (75) 53 CA3d 1069, 1072 [126 CR 104]; see also (See People v. Hoover (74) 12 C3d 875, 878-79 [117 CR 672]; People v. Cooper (91) 53 C3d 1158, 1164 [282 CR 450] [Beeman “presupposes” that requisite intent must be formed prior to or during “commission” of the offense]; CJ 14.54; FORECITE F 9.40d; People v. Pulido (97) 15 C4th 713, 723 [63 CR2d 625; People v. Haynes (98) 61 CA4th 1282, 1293 [72 CR2d 143] [jurors must find act of aiding and abetting was committed prior to termination of robbery]; CJ 14.54; F 9.40d.) Because CJ 3.01 fails to convey this requirement, there is a danger that the jury may rely upon after-acquired intent and/or post-offense acts by the defendant to impose aiding and abetting liability. [See Brief Bank # B-729 for additional briefing on this issue.]

(See FORECITE F 3.01t.)

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

(See FORECITE F 3.01d.)

NOTE: Consideration should be given to whether the felony is completed for the purposes of aiding and abetting see e.g., FORECITE F 9.40d [robbery]; F 14.54a [burglary].

F 3.01d

Post-Crime Assistance Is Not Aiding and Abetting

(PC 31)

Ninth Circuit Model

ALTERNATIVE # 2 [add to CJ 3.01 as fourth element:]

4. The act or advice occurred prior to or during the commission of the offense by the perpetrator.

Points and Authorities

It is well-settled that aiding and abetting liability may not be based upon an intent which is formed after the commission of the offense or an act which is committed after completion of the offense. (See People v. Hoover (74) 12 C3d 875, 878-79 [117 CR 672]; People v. Cooper (91) 53 C3d 1158, 1164 [282 CR 450] [Beeman “presupposes” that requisite intent must be formed prior to or during “commission” of the offense]; see also People v. Pulido (97) 15 C4th 713, 723 [63 CR2d 625]; FORECITE F 3.01c; see also CJ 3.31.5 [re: concurrence of act and mental state]; CJ 14.54; FORECITE F 9.40d.) Because CJ 3.01 fails to convey this requirement, there is a danger that the jury may rely upon after-acquired intent and/or post-offense acts by the defendant to impose aiding and abetting liability. [See Brief Bank # B-729 for additional briefing on this issue.]

(See FORECITE F 3.01t.)

The above instruction was taken from the NINTH CIRCUIT MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS (5.1 Aiding and Abetting). See also Points and Authorities in FORECITE F 3.01c.

F 3.01e

Perpetrator Must Be Found Guilty Beyond A Reasonable Doubt

See FORECITE F 401.5 Inst 5.

F 3.01f

No Legal Duty To Report Crime

ALERT: As of January 1, 2001, PC 152.3 was added, requiring any person to notify a peace officer, if the person reasonably believes that he or she has observed the commission of murder, rape or a lewd or lascivious act by force or menace in violation of PC 288(b)(1) against a child victim under the age of 14. Such duty is satisfied if the notification or attempted notification is made by telephone or other means. The new section does not affect privileged relationships as otherwise provided by law. Failure to notify is a misdemeanor and does not apply to a relative of the victim or offender, a person who fails to make a report based on a reasonable mistake of fact, or a person who fails to report based on a reasonable fear for his or her own safety or the safety of his or her family. (Sherrice Iverson Child Victim Protection Act AB 1422, Ch. 477)

*Add to CJ 3.01:

There is no legal duty to report to the authorities that another person has committed a crime.

Points and Authorities

Mere Presence: People v. Villa (57) 156 CA2d 128, 134 [318 P2d 828] [mere presence doesn’t establish aider or abettor liability].

Failure To Act: People v. Luna (56) 140 CA2d 662, 664 [295 P2d 457] [a person who stands by and watches an assault, and even approves of it, is a mere bystander, and not an accessory to the assault”]; see also, LaFave & Scott, Substantive Criminal Law (1986), § 6.7, p. 138 [“one does not [generally] become an accomplice by refusing to intervene in the commission of a crime … [and so] courts have experienced considerable difficulty in cases where the defendant was present at the time of the crime and the circumstances of his presence suggest that he might be there pursuant to a prior agreement to give aid if needed”].

Mere Silence: People v. Garnett (1900) 129 C 364, 366 [61 P 1114] [under PC 32, mere silence, after knowledge of the commission of a felony, is not sufficient to convict one an accessory, without some affirmative act looking towards the concealment of the crime].

(See FORECITE F 3.01t.)

See also 54 Harv.L.Rev. 506 [Common-Law Offense of Misprison of Felony Held Not Part of Modern Criminal Law] and cases cited therein].

ALTERNATIVE INSTRUCTION

*Add to CJ 3.01:

Proof that the defendant only stood by at the time the offense is alleged to have been committed is insufficient to prove the defendant guilty. Unless the prosecution has proven beyond a reasonable doubt that the defendant aided and abetted the crime as defined elsewhere in these instructions, you must find the defendant not guilty. If you have a reasonable doubt whether the defendant aided and abetted the crime, you must resolve that doubt in favor of the defendant and find [him] [her] not guilty.

Points and Authorities

It is error to refuse an instruction informing the jury that if the defendant merely stood by at the time of the offense then the defendant is not guilty. (See People v. Woodward (1873) 45 C 293, 294; see also, People v. Cressey (70) 2 C3d 836, 848 [87 CR 699]. The above instruction is adapted from the instruction approved in Woodward.

NOTES

See also FORECITE F 14.65b for specific instruction relating this principle to receipt of stolen property.

F 3.01g

Aiding And Abetting Defined And Distinguished

(PC 31)

*Modify CJ 3.01 to provide as follows [new material is capitalized]:

A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she, ¶ (1) With knowledge of the unlawful purpose of the perpetrator and (2) With the intent or purpose of committing, encouraging or facilitating the commission of the crime by act or advice, (A) PROMOTES, ENCOURAGES OR INSTIGATES, AND (B) ACTUALLY AIDS OR ASSISTS, THE COMMISSION OF THE CRIME.

Points and Authorities:

“The term ‘aider and abetter’ is now often used to refer to principals other than the perpetrator ….” (People v. Beeman (84) 35 C3d 547, 554-55 [199 CR 60].) But the courts must not lose sight of the fact that the terms “aider” and “abetter” are not synonymous. On the contrary, “the two words have a distinct and separate meaning.” (People v. Elliott (93) 14 CA4th 1633, 1641, fn 8 [18 CR2d 426].) Under PC 31, “[a]side from the person who directly commits a criminal offense, no other person is guilty as principal unless he aids and abets. [Citations].” (People v. Dole (1898) 122 C 486, 492, emphasis in original.)

“The word ‘aids’ means ‘to assist; to supplement the efforts of another,’ while the word ‘abet’ means merely to incite or encourage. [Citation].” (Elliott 14 CA4th at 1641, emphasis by Elliott court.) Thus, aiding “requires something more than mere encouragement or incitement ….” (Ibid.) The defendant must render “overt or affirmative assistance ….” (Ibid., emphasis omitted.) Hence, absent proof of some “overt or affirmative assistance” to the principal actor, true “aiding” cannot be found. (Elliott, 14 CA4th at 1641; People v. Brady (87) 190 CA3d 124, 132 [235 CR 248]; see also People v. Montoya (94) 7 C4th 1027, 1044-45 [31 CR2d 128] [disapproving Brady on another point but approving Brady on this point].)

“[T]he term ‘aid and abet’ is not one in everyday use by laymen although it is commonly used in law …. Whenever instructions are given to the effect that one may be convicted if he aids and abets the criminal act the two words should be clearly defined.” (People v. Ponce (50) 96 CA2d 327, 331 [215 P2d 75].) By failing to define the “distinct and separate meaning[s]” of the two words (People v. Elliott, supra, 14 CA4th at 1641, fn 8) — and, even worse, by stating that either “aiding” or “encouraging” results in culpability — CJ 3.01 inadequately defines the actus reus of accomplice liability.

CALJIC’s definition of “aiding and abetting” is derived from the Supreme Court’s “suggest[ion]” in People v. Beeman, supra, 35 C3d at 561: “We suggest that an appropriate instruction should inform the jury that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (Emphasis added.) But the court’s entire preceding analysis concerned the issue of accomplice intent. (Id. at 555-61.) Beeman had no occasion to address, and did not address, the entirely separate issue of the requisite acts for accomplice liability. Indeed, the court’s formulation merely repeated the wording already used in CALJIC’s definition of the necessary action. (Id. at 555.) For this reason, People v. Campbell (94) 25 CA4th 402 [30 CR2d 525] is unpersuasive since it relied solely upon Beeman and never addressed the actus reus of aiding and abetting. (See also People v. Booth (96) 48 CA4th 1247, 1255 [56 CR2d 202].)

In sum, because the actus reus of aiding and abetting requires that the defendant aid and abet the commission of the crime, CJ 3.01 should require the jury to make such a finding under appropriate definition of the terms aid and abet as set forth above.

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-619.]

F 3.01h

“Standing By” During The Offense Is Not Aiding and Abetting

*Add to CJ 3.01:

Points and Authorities

(See FORECITE F 3.01t.)

NOTES

See also FORECITE F 14.65b for specific instruction relating this principle to receipt of stolen property.

F 3.01i

Mere Presence Which Assists Commission

Of The Crime Is Not Aiding And Abetting

*Modify CJ 3.01 ¶ 5 to provide as follows [added language is capitalized; deleted language is between <<>>]:

Mere presence at the scene of a crime <<which does not itself assist the commission of the crime>> does not amount to aiding and abetting.

[See FORECITE F 3.01a regarding requirement that defendant advise and encourage the perpetrator; see FORECITE F 3.01j regarding need to clarify actus reus in CJ 3.01.]

Points and Authorities

Without one of the above modifications, CJ 3.01 could be interpreted to allow aiding and abetting liability based on presence at the scene of the crime which assists the commission of the crime, even though the defendant did not have the requisite intent to aid and abet. Such a result would violate the settled construction of aiding and abetting in California (see People v. Beeman (84) 35 C3d 547, 560-61 [199 CR 60] see also People v. Booth (96) 48 CA4th 1247, 1256 [56 CR2d 202] [accomplice must have been present for the purpose of committing the offense]) and would implicate the defendant’s state and federal constitutional rights to due process and trial by jury by allowing conviction without requiring the jury to find all elements of the charge. (See California v. Roy (96) 519 US 2 [136 LEd2d 266; 117 SCt 337] [failure to instruct on Beeman intent element recognized as federal constitutional error].)

(See FORECITE F 3.01t.)

F 3.01j

Aiding And Abetting: Clarification Of Actus Reus and Mens Rea

*Modify CJ 3.01 ¶ 1, 2, 3 to provide as follows:

A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she, by act or advice aids, promotes, encourages or instigates the commission of the crime:

(1) with knowledge of the unlawful purpose of the perpetrator, and

(2) with the intent or purpose of committing, encouraging or facilitating the commission of the crime.

Points and Authorities

It is axiomatic that the law does not punish for an intent alone or an act alone. There must be a concurrence of both act and intent (PC 20; FORECITE F 3.31.5 n1; People v. Green (80) 27 C3d 1, 53 [164 CR 1]; Lupo v. Superior Court (73) 34 CA3d 657, 661 [110 CR 185]. The act or advice language is intended to be a statement of the actus reus of aiding and abetting rather than the mens rea. (See FORECITE F 3.01a; see also, PC 31.)

CJ 3.01 fails to clearly convey this requirement as to aiding and abetting. The current language of CJ 3.01 is ambiguous as to whether the “act or advice” element is part of the mens rea or the actus reus of the crime. As currently phrased, the language “by act or advice” immediately follows the language describing the necessary intent. Therefore, the reader could easily conclude that the defendant need only intend to act or advise.

In other words, the jury must find that the defendant actually committed an act of advice, encouragement, etc. rather than merely forming an intent to commit such an act. Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

[See Brief Bank # B-816 for additional briefing on this issue.]

F 3.01k

Aiding And Abetting: “Feigned Accomplice” Defense

*Add to CJ 3.01:

To be liable for the perpetrator’s conduct, an aider and abettor must knowingly assist or encourage the perpetrator with the intent of either committing or facilitating commission of the underlying offense. Therefore, if the acts of aiding and abetting were committed with the intent to bring the perpetrators to justice, rather than to facilitate commission of the crime, the defendant is not guilty as an aider and abettor. If you have a reasonable doubt whether the defendant intended to facilitate the crime, you must resolve that doubt in favor of the defendant and return a verdict of not guilty.

Points and Authorities

“An accomplice is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of the crime.” (People v. Bolanger (1886) 71 C 17, 20 [11 P 799]; see also People v. Beeman (84) 35 C3d 547, 559 [199 CR 60].) Therefore, a person who intentionally aided and abetted the perpetrator of a crime but who had “feigned complicity for the purpose of detecting the [culprits]” is not guilty as an aider and abettor. “To act so as to frustrate a criminal objective negates an intent to further it.” (People v. Rogers (85) 172 CA3d 502, 513 [217 CR 809].)

F 3.01l

Jury Required To Find More Than Mere Presence

*Replace CJ 3.01 “mere presence” language with the following:

Mere presence at the scene of a crime, knowledge that a crime is being committed and failure to take action to prevent the crime are not enough to convict the defendant as an aider and abettor. Even if you have concluded that the defendant was a “knowing spectator” who failed to prevent or report the crime, you may not convict the defendant unless you find that there is additional evidence, above and beyond the defendant’s knowing presence, which, in light of all the circumstances, proves beyond a reasonable doubt that the defendant intended to commit, encourage or facilitate the commission of the crime.

OR *Modify CJ 3.01 “mere presence” language to provide as follows [added language is capitalized; deleted language is between <<>>]:

Mere presence of a person at the scene of a crime <<which does not itself assist the commission of the crime does not amount to aiding and abetting>> IS INSUFFICIENT IN ITSELF TO PROVE THAT SUCH PERSON WAS AN AIDER OR ABETTOR.

ALTERNATIVE # 3:

Mere presence at the scene of the crime and intimate knowledge of the offenses merely make a person an eyewitness and do not, without more, permit conviction of the person as an [aider and abettor of the crime] [accomplice].

[Adapted from People v. Lewis (2001) 26 C4th 334, 369 [110 CR2d 272]; see also People v. Stankewitz (90) 51 C3d 72, 90 [270 CR 817].]

ALTERNATIVE # 4:

Presence of a person at the location of an alleged crime while the criminal activities are taking place and knowing that they are taking place cannot support a conviction as an aider and abettor. It is extremely imprudent to remain knowingly in the presence of an ongoing crime, but imprudence is not a crime. Sometimes youthful inexperience and lack of common sense, impecuniousness, or personal relationships may bring the innocent into continuing proximity with the guilty, but acquittal is required in the absence of evidence of intentional participation.

[Adapted from U.S. v. Herrera-Gonzalez (9th Cir. 2001) 263 F3d 1092, 1097-98.]

Points and Authorities

It has long been settled that mere presence at the scene of the crime and the failure to take action to prevent the crime are not alone sufficient to constitute aiding and abetting. (See People v. Snyder (2003) 112 CA4th 1200; People v. Van Nguyen (93) 21 CA4th 518, 529 [26 CR2d 323]; People v. Durham (69) 70 C2d 171, 181 [74 CR 262].) Likewise, knowledge of another’s criminal purpose is not sufficient for aiding and abetting. (People v. Beeman (84) 35 C3d 547, 560 [199 CR 16].) “Neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor. Such evidence may, however, be considered together with other evidence in determining that a person is an aider and abettor. [Citation.]” (In re Jose T. (91) 230 CA3d 1455, 1460 [282 CR 75].) In other words, it is not enough that the defendant was “merely a knowing spectator.” (See People v. Bishop (96) 44 CA4th 220, 234 [51 CR2d 629]; see also People v. Villa (57) 156 CA2d 128, 135 [318 P2d 828] [“presence at the scene of the crime, …knowledge that a crime was being committed and…failure to prevent it alone could not support the conviction [for aiding and abetting]”]; Pinell v. Superior Court (65) 232 CA2d 284, 288-89 [defendant had no knowledge of crime]; but see In re Juan G. (2003) 112 CA4th 1 [juvenile court reasonably inferred from appellant’s presence that he shared the criminal intent and that he aided, promoted, and encouraged the commission of the robbery]; In re Lynette G. (76) 54 CA3d 1087, 1094 [sufficient evidence to conclude minor participated as an aider and abettor as she was at the crime scene, fled with the perpetrator and her companions, and was soon detained in their company].)

The problem with the current language of CJ 3.01 is that it effectively tells the jury that mere presence which does assist the commission of the crime constitutes aiding and abetting. As made clear by the above discussion, this is not the law.

Moreover, the current instruction could be prejudicial because a juror could quite reasonably conclude that a defendant’s presence at the scene aided the commission of the crime, even though the defendant had no intent of doing so. (See State v. Noriega (Ariz.Ct.App. 1996, 94-0474) 1996 Ariz.App. LEXIS 153 [221 Ariz.Adv.Rep. 22].) Additionally, by failing to require that the jury find other evidence above and beyond mere presence, CJ 3.01 invites the jury to rely on the defendant’s presence in order to establish the intent elements as well. (Ibid; compare People v. Brown (81) 116 CA3d 820, 826 [172 CR 221] [jury instructed that “mere presence of a person at the scene of a crime… is insufficient in itself to show that such person is an aider or abettor….”]; People v. Howard (64) 226 CA2d 281, 285 [37 CR 918] [“Mere presence at the scene of the crime is not sufficient, without more, to establish that a witness was an aider or abettor…. [Citations.]”].)

(See FORECITE F 3.01t.)

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]

See FORECITE F 3.01n.

F 3.01m

Aiding And Abetting: “Feigned Perpetrator” Defense

*Add to CJ 3.01:

In order to be guilty as an aider and abettor, the defendant must have aided and abetted a perpetrator who actually committed the substantive crime. If the perpetrator was actually a law enforcement agent or if the perpetrator acted with an intent to apprehend the culprits rather than to commit the offense, then the defendant cannot be found guilty of having aided and abetted that offense.

If you have reasonable doubt as to whether the perpetrator has the requisite criminal intent, you must resolve that doubt in favor of the defendant and return a verdict of not guilty.

Points and Authorities

It is well settled that a “feigned accomplice” is not guilty of aiding and abetting. (See FORECITE F 3.01k.) It is also established that an aider and abettor is not guilty of the substantive offense unless the perpetrator had the necessary criminal intent required to commit said offense. (See FORECITE F 3.01b; F 3.01e; see also F 6.10 n7 [no conspiracy with government agent or feigned participant].) NOTE: If some appreciable fragment of the act constituting the crime is actually committed by a feigned perpetrator, then it would stand to reason that the defendant could be liable for the attempted commission of the substantive crime. (See People v. Phillips (85) 41 C3d 29, 73 fn 26 [222 CR 127].)

F 3.01n

Aider And Abettor Must Separately Form Intent
Or Mental State Elements Of Charged Offense

See FORECITE F 401.5 Inst 7.

F 3.01o

Aider And Abettor: Self-Defense Or Defense Of Others

*Add to CJ 3.01:

A person who in [self-defense] [defense of another] facilitates or encourages [a battery] [an assault] [a killing] [__________] by another is not guilty of [battery] [assault] [unlawful homicide] [__________].

Therefore, in deciding whether ___________________ (name of alleged aider and abettor) is guilty of [assault] [murder], consider any evidence of _________________ (e.g., self-defense, defense of another) from [his] [her] perspective.

Unless the prosecution has proven beyond a reasonable doubt that ________________ (name of alleged aider and abettor) did not act in [self-defense] [defense of another] you must find ___________________ (name of alleged aider and abettor) not guilty. This is so even if ___________________’s (name of alleged aider and abettor) acts actually facilitated or encouraged the commission of the offense and even though you [believer] [have found] that ___________________ (name of alleged perpetrator) is guilty of [voluntary manslaughter] [or] [murder] [or] [_________________].

Points and Authorities

See FORECITE F 3.01n.

NOTE: Full instruction on the relevant defense theory (e.g., heat of passion or imperfect self-defense should be given elsewhere.

F 3.01p

Applicability Of Imperfect Self-Defense And/Or Heat

Of Passion To Person Charged With Aiding And Abetting Murder

*Add to CJ 3.01:

To be guilty of the crime committed by the perpetrator the alleged aider and abettor must both:

1) intend to commit, facilitate or encourage the act committed by the perpetrator; and

2) share the perpetrator’s intent.

This means that the alleged perpetrator must have actually formed the mental state of malice aforethought during or before the alleged acts of aiding and abetting.

In deciding whether ______________ (name of alleged aider and abettor) acted with malice aforethought consider any evidence of ___________________ (e.g., heat of passion, imperfect self-defense, imperfect defense of another).

(Here define the defense at issue.)

Unless the prosecution has proven beyond a reasonable doubt that ______________ (name of alleged aider and abettor) did not act ________________ (e.g., in the heat of passion, under a good faith belief that he/she needed to defend himself/herself/another) you must find the defendant guilty of voluntary manslaughter rather than murder. This is so, even if you [believe] [have found] _________________ (name of alleged perpetrator) guilty of murder.

Points and Authorities

See FORECITE F 3.01n.

NOTE: Full instruction on the relevant defense theory (e.g., heat of passion or imperfect self-defense should be given elsewhere.

F 3.01q

Aiding And Abetting Requires Substantial Participation

*Modify Element 3 of CJ 3.01 to provide as follows [added language is underlined and capitalized]:

3. By act or advice SUBSTANTIALLY aids, promotes, encourages, or instigates the commission of the crime.

Points and Authorities

The common law definition of aiding and abetting in the tort context requires “substantial assistance to the other in accomplishing a tortious result …” (Fiol v. Doellstedt (96) 50 CA4th 1318, 1325 [58 CR2d 308].) Certainly, the elements of aiding and abiding liability in the criminal context should be no less than is required under civil law. Accordingly, the jury should be instructed upon the “substantial” element as set forth above as a predicate to imposing criminal liability for aiding and abetting. As recently recognized by the United States Supreme Court, the courts should look to the common law to determine whether the defendant has a vested due process right in a particular defense. (See Montana v. Egelhoff (96) 518 US 37 [135 LEd2d 361; 116 SCt 2013] [plurality opinion]; see also Schad v. Arizona (91) 501 US 624 [115 LEd2d 555; 111 SCt 2491].) Under the same reasoning, the defendant has a due process right to instruction upon the elements of aiding and abetting as established by the common law.

(See FORECITE PG VII(C)(48).)

F 3.01r

For Aider/Abettor To Be Guilty Of First Degree Murder,

Perpetrator Must Harbor Express Malice and

Premeditation and Deliberation

(PC 31)

*Add to CJ 3.01 when appropriate:

To find defendant guilty of [attempted murder] [murder] in the first degree it must be proven beyond a reasonable doubt that ___________ [insert name of actual killer] committed the killing [attempted to kill] with express malice and willful, deliberate premeditation.

Points and Authorities

When a defendant is charged with attempted or completed murder based on premeditation and deliberation as an aider and abettor the perpetrator (actual killer) must have the requisite mental state and the jury must be so instructed. The perpetrator “can (and must) manifest the mens rea of the crime committed” as a prerequisite to aider and abettor liability. (People v. Luparello (86) 187 CA3d 410, 439 [231 CR 832].) Thus, for a jury to determine that a defendant has directly aided and abetted another person’s commission of a crime, the jury must necessarily determine the crime that the other person committed, including (where relevant) his mental state. This principle is recognized in numerous cases and in a number of contexts, as typified by the following statements of law:

People v. Patterson (89) 209 CA3d 610, 614 [257 CR 407]: “A defendant’s culpability for attempted murder as an aider and abettor necessarily depends on the commission of that crime by the perpetrator. In order to convict the perpetrator of attempted murder, the jury must find he had the requisite express malice and specific intent to kill. If no such finding is made, that person is not guilty of attempted murder.”

People v. Woods (92) 8 CA4th 1570, 1586 [11 CR2d 231]: In order to find a defendant guilty as an aider and abettor, a jury “first must determine the crimes and degrees of crimes originally contemplated and committed, if any, by the perpetrator.”

People v. Solis (93) 20 CA4th 264, 270-271 [25 CR2d 184]: “‘What is at issue is the responsibility of the secondary actor for the principal actor’s violation of law. Unless the latter occurs there can be no accomplice liability.’ . . . [T]he jury must determine the crime actually perpetrated by the acting criminal, which determination includes a particular definition of the crime committed and necessitates the giving of instructions as to that crime (including any lesser-included crimes that may be appropriate under the factual circumstances). If the principal actor is found not to have committed the crime, there can be no derivative liability no matter how evil the intentions of the would-be aider and abettor.” (Emphasis added; quoting Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323, 337; see also, e.g., People v. Hammond (86) 181 CA3d 463, 467 [226 CR2d 475] [“settled principles” establish “that the issue of attempted murder requires a specific intent to kill and that an aider and abettor must share the perpetrator’s intent”] (citations omitted); People v. Brigham (89) 216 CA3d 1039, 1050 [265 CR 486] [“the aider and abettor’s derivative criminal liability is based” on “the perpetrator’s criminal act”].

In sum, when a defendant is accused of a crime based on the theory that he directly aided and abetted another person in committing the crime, the jury must determine whether the other person (the principal actor) committed the crime in question before the defendant (the secondary actor) can be held liable for the principal actor’s crime. The elements of the charged crime (the crime committed by the principal actor) are thus elements of the charge against the defendant, and, as has long been established, the trial court has a duty to ensure the jury is adequately instructed “on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law.” (People v. Sanchez (50) 35 C2d 522, 528 [219 P2d 9]; see also People v. Patterson, supra, 209 CA3d 610 at 616-17. See also FORECITE F 3.10b.)

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-750.]

Application To Mental Elements Of Other Crimes: Because the perpetrator must actually form the required mental elements (People v. Beeman (84) 35 C3d 547, 560 [199 CR 60]), this instruction may be adapted for use in any case where the mental state of the perpetrator may be in issue.

F 3.01s

Aiding And Abetting:

Mere Presence At The Scene And Intimate

Knowledge Of The Crime Are Not Sufficient To Convict

*Re: CJ 3.01:

(See FORECITE F 3.01l.]

F 3.01t

Giving Assistance Without Sharing The Perpetrator’s

Purpose And Intent Establishes Liability Only As

An Accessory, Not As An Accomplice

*Add to CJ 3.01:

You may not find [______________ (name of defendant)] guilty as an aider or abettor unless [he] [she]:

1. Actually knew and shared the full extent of [the [alleged] perpetrator’s] [______________ (name of alleged perpetrator)] criminal intent;

2. Actually promoted, encouraged, or assisted [the [alleged] perpetrator] [______________ (name of perpetrator)]; and

3. Did so with the intent and purpose of advancing [the [alleged] perpetrator’s] [______________ (name of perpetrator)] successful commission of the alleged ______________ (name of target offense)].

It is not sufficient if the person simply gives assistance with knowledge of the perpetrator’s criminal purpose. Merely giving assistance without sharing the perpetrator’s purpose and intent establishes liablity only as an accessory, not as an accomplice.

Points and Authorities

An accomplice need not share in the actual perpetration of a crime to be chargeable as a principal therein; liability as an accomplice to a crime may be based on having aided and abetted its commission. (People v. Beeman (84) 35 C3d 547.) However, “an aider and abettor is chargeable as a principal only to the extent he or she actually knows and shares the full extent of the perpetrator’s specific criminal intent, and actively promotes, encourages, or assists the perpetrator with the intent and purpose of advancing the perpetrator’s successful commission of the target offense.” (People v. Snyder (2003) 112 CA4th 1200, 1220, citing People v. Beeman, 35 C3d at 560.) “It is not sufficient if the person simply gives assistance with knowledge of the perpetrator’s criminal purpose. Merely giving assistance without sharing the perpetrator’s purpose and intent establishes liability only as an accessory, not as an accomplice.” (Snyder, 112 CA4th at 1220, citing People v. Sully (91) 53 C3d 1195, 1227 [“An aider and abettor is chargeable as a principal, but his liability as such depends on whether he promotes, encourages, or assists the perpetrator and shares the perpetrator’s criminal purpose. [Citation.] It is not sufficient that he merely gives assistance with knowledge of the perpetrator’s criminal purpose”]; People v. Stankewitz (90) 51 C3d 72, 90 [presence at scene of crime or failure to prevent commission of crime insufficient to establish aiding and abetting]; People v. Tewksbury (76) 15 C3d 953, 960 [“[c]riminal liability as a principal attaches to those who aid in the commission of a crime only if they also share in the criminal intent”]; People v. Hoover (74) 12 C3d 875, 879 [assisting principal to escape does not result in liability as principal or aider and abettor, but merely as accessory].) “A mere accessory is not liable as an accomplice [citation to People v. Horton (95) 11 C4th 1068, 1114], and a court is not obligated to give an accomplice instruction when the evidence establishes that the witness was merely an accessory." (Synder, 112 CA4th 1220, citing People v. Soto (99) 74 CA4th 1099, 1101.)

See also FORECITE F 3.00e, 3.01l, 3.01c, 3.01d, 3.01f, 3.01h and 3.01i.